Hare, J. v Gladwin, E.A

Re: JOHN HARE
And: E.A. GLADWIN; JOHN STONER AND AUSTRALIAN ELECTORAL COMMISSION
No. NTG2 of 1988
FED No. 331
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Administrative Law - judicial review - funding of political party for election campaigns - disclosure by party of donations - notice requiring secretary of company to produce documents showing receipts of money by company - company trustee of trust connected with political party - secretary of company also the agent of the party for the purposes of the Commonwealth Electoral Act 1918 - statement in notice that authorized officer giving it had reasonable grounds to believe that secretary capable of producing documents relating to a possible contravention of the Act or to a return furnished under the Act - whether authorized officer had reasonable grounds for belief - whether form of notice invalid for failure to state grounds of belief and/or the relevance of the documents to any possible contravention of the Act or to a return - whether requirement for production too widely expressed - whether secretary of company accorded natural justice or procedural fairness - whether secretary entitled to rely on privilege against self-incrimination.

Commonwealth Electoral Act 1918, ss. 4, 287, 303, 304, 315, 316

HEARING

SYDNEY

#DATE 4:7:1988

Counsel for the Applicant: Mr M. J. Neil, Q.C. and Mr L. Ellison

Solicitors for the Applicant: Messrs. Loftus & Cameron

Counsel for the Respondents: Mr. G. Downes, Q.C. and Mr. T. Reiley

Solicitors for the Respondents: Australian Government Solicitor

ORDER

The application be dismissed.

The applicant pay the respondents' costs thereof.

There be liberty to each party to apply on two days' notice as they may be advised for an order in relation to the documents lodged by the applicant with the Registrar.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By his amended application in this matter the applicant claims in the alternative an order in the nature of a writ of prohibition restraining the respondents from taking any further steps or action pursuant to a notice dated 26 February 1988 to the applicant purportedly given under subsec. 316(3) of the Commonwealth Electoral Act 1918, an order in the nature of a writ of certiorari quashing the said notice, an injunction restraining the respondents and each of them from taking any step in reliance upon the notice, a declaration that the notice is invalid and relief under the Administrative Decisions (Judicial Review) Act 1977.

The Legislation

In order to understand the claims for relief which are made it is necessary to refer to a number of provisions of the Commonwealth Electoral Act ("the Act"), the notice and some of the matters referred to in evidence. Part XX of the Act is headed, "Election Funding and Financial Disclosure". Section 287 contains a number of definitions. Section 288 provides for the appointment of agents by political parties. Division 3 of Part XX provides for election funding, Division 4 for the disclosure of donations, Division 5 for the disclosure of electoral expenditure and Division 6 for a number of miscellaneous matters. Section 316 is in Division 6. So far as it is relevant the section, which is headed "Investigation, &c.", is as follows:-

"316. (1) In this section, 'authorized officer' means a person authorized by the Electoral Commission under sub-section (2).

(2) The Electoral Commission may, by instrument in writing signed by the Electoral Commissioner on behalf of the Electoral Commission, authorize a person or a person included in a class of persons to perform duties under this section.

(3) Where an authorized officer has reasonable grounds to believe that a person is capable of producing documents or other things or giving evidence relating to a contravention, or possible contravention, of section 315, or relating to matters that are set out in, or are required to be set out in, a claim or return under this Part, the authorized officer may, by notice served personally or by post on that person, require that person-

(a) to produce, within the period and in the manner specified in the notice, such documents or other things as are referred to in the notice; or

(b) to appear, at a time and place specified in the notice, before the authorized officer to give evidence, either orally or in writing, and to produce such documents or other things as are referred to in the notice.

(4) An authorized officer may require any evidence that is to be given to him in compliance with a notice under sub-section

(3) to be given on oath or affirmation and for that purpose the authorized officer may administer an oath or affirmation.

(5) A person shall not, without reasonable excuse, refuse or fail to comply with a notice under sub-section (3) to the extent that the person is capable of complying with the notice.

Penalty: $1,000.

(6) A person shall not, in purported compliance with a notice under sub-section

(3), give evidence that is, to his knowledge, false or misleading in a material particular. Penalty: $1,000 or imprisonment for 6 months, or both.

........ ........ ........ ........ ........ ...."

Section 304 is in Division 4, which deals with the disclosure of donations. Subsection 304(1) provides as follows:-

"(1) The agent of each political party and the agent of each State branch of each political party shall, before the expiration of 20 weeks after the polling day in an election (in this sub-section referred to as the 'current election'), furnish to the Electoral Commission a return, in an approved form, setting out the total amount or value of all gifts, the number of gifts, and the relevant details of each gift, received by the political party or branch, as the case may be, during the period that commenced on the day after the polling day in the election immediately preceding the current election and that ended on the polling day in the current election."

"State branch" is defined in subsec. 287(1) to mean a branch or a division of a political party that is organized on the basis of a particular State or Territory. The reference to a return "in an approved form" needs to be read in conjunction with the definition of "approved" in subsec. 4(1) of the Act. It means approved by the Electoral Commission by notice published in the Gazette.
Subsection 304(4) provides that, for the purposes of the section, a reference to "the relevant details" in relation to a gift shall be read as a reference to the amount or value of the gift, the date on which the gift was made and the name and address of the person who made the gift. "Election" is defined in s. 303 to mean a general election or an election of senators for a State or Territory. Subsection 304(5) provides that the obligation imposed by subsec. 304(1) does not apply if the amount or value of the gift be less than $1,000 or the gift was made on the condition that it be used by the party or branch for a purpose other than a purpose related to an election or a by-election and the party or branch has used, or will use, the gift accordingly.
Subsections 315(1), (2), (3) and (7) of the Act are as follows:-

"315. (1) Where a person fails to furnish a return that the person is required to furnish under Division 4 or 5 or under sub-section 318(2) within the time required by this Part, the person is guilty of an offence punishable, upon conviction, by a fine not exceeding-

(a) in the case of a return required to be furnished by the agent of a political party or of a State branch of a political party - $5,000; or

(b) in any other case - $1,000

(2) Where a person-

(a) furnishes a return that is incomplete, being a return that the person is required to furnish under Division 4 or 5 or under sub-section 318(2); or

(b) fails to retain records in accordance with section 317,

the person is guilty of an offence punishable, upon conviction, by a fine not exceeding $1,000.

(3) Where the agent of a political party or of a State branch of a political party lodges a claim under Division 3, or furnishes a return that the agent is required to furnish under Division 4 or 5 or under sub-section 318(2), that contains particulars that are, to his knowledge, false or misleading in a material particular, the agent is guilty of an offence punishable, upon conviction, by a fine not exceeding $10,000. ........ ........ ........ ........ ........ ....

(7) A person shall not furnish to another person who is required to furnish a return under Division 4 or 5 or under sub-section 318(2) information that relates to the return and that is, to the knowledge of the first-mentioned person, false or misleading in a material particular."

Section 315 is the first of the sections in Division 6. Neither s. 317 nor s. 318 is relevant to the matters in question in this case.

The Notice

The respondent, Mrs. Gladwin, is the Director of the Funding and Disclosure Section of the Electoral Commission. She is authorized pursuant to s. 316 of the Act to perform duties under that section. The applicant, Mr. Hare, is the Secretary of a company known as Carpentaria Pty. Limited and the appointed agent of the Northern Territory Country Liberal Party to which I shall refer as "the party". On 26 February 1988 Mrs. Gladwin caused to be served on Mr. Hare the notice which is the subject of contention in this case. It was as follows:-

"COMMONWEALTH ELECTORAL ACT 1918: SECTION 316(3) Mr. J.D. Hare

Secretary

Carpentaria Pty Ltd

107 Woods Street

Darwin NT 5790

WHEREAS I have reasonable grounds to believe that you are capable of producing documents relating to a possible contravention of section 315 of the Commonwealth Electoral Act 1918; AND WHEREAS I further have reasonable grounds to believe that such documents also relate to matters that are set out in a Return of Details of Gifts Received furnished to the Australian Electoral Commission by the Northern Territory Country Liberal Party pursuant to section 304 of the said Act;

I Elizabeth Anne Gladwin, an authorised officer within the meaning of section 316(1) of the said Act, hereby require you to produce the following documents:

all books of account, banking records, receipts and other documents that are in the custody or possession of yourself or of Carpentaria Pty Limited and which record or disclose the receipt of money by the Carpentaria Trust, or by Carpentaria Pty Limited or any other company or person on behalf of the Carpentaria Trust, in the period from 2 December 1984 to 11 July 1987; And I require you to produce the said documents by delivering them, or copies of them, to Mr. John Stoner at the Office of the Australian Electoral Commission at 2nd Floor, MLC Building, 79-81 Smith Street, Darwin between the hours of 9.00am and 12.00 pm or between the hours of 2.00pm and 5.00pm on any business day on or before the 11th day of March 1988. (Signed)

E A GLADWIN

Authorised Officer

26 February 1988

TO THE RECIPIENT

Section 316(5) of the Commonwealth Electoral Act 1916 provides:

"(5) A person shall not, without reasonable excuse, refuse or fail to comply with a notice under sub-section (3) to the extent that the person is capable of complying with the notice.

Penalty: $1,000."

Mr. Hare did not comply with the requirements of the notice. Instead, he instituted these proceedings which were commenced by an application to this Court filed on 11 March 1988. There was an application for interlocutory relief to restrain the respondents from acting on the notice. These were not proceeded with after the parties reached an agreement which involved Mr. Hare placing the documents in a sealed envelope and depositing the envelope with the Registrar. The documents remain in the Registrar's custody. The parties' agreement is silent on the question of what is to become of the documents once the litigation is concluded. Mr. Hare has sought the return of the documents to him whether or not his application for relief is successful. On the other hand, Mrs. Gladwin seeks an order directing the Registrar to deliver the documents to her should the application fail.
The Material Available to Mrs. Gladwin
On 8 October 1987 Mr. Hare signed a return pursuant to subsec. 304(1) of the Act. For this purpose he used a form approved by the Electoral Commission. The return was headed, "Returns to be submitted by the agent of a policital party". The return was signed by Mr. Hare as agent for the party and lodged with the Commission. It covered the period from 2 December 1984 to 11 July 1987. There is no question but that that was the period for which the return was required. The return was stated by Mr. Hare to include all gifts received by all House of Representatives candidates endorsed by the party and all gifts received by the party's Senate group and each member of the Senate group endorsed by the party. The total value of all gifts received during the period was said to be $374,171.30. The number of gifts was 81. Appended to the return was a schedule setting out the names and addresses of donors who had made gifts of $1,000 or more. Amongst the donors was the company, Carpentaria Pty. Limited, which was said to have made gifts of $130,000 on 13 September 1984, $8,000 on 27 March 1985, $25,000 on 2 July 1985, $25,000 on 2 September 1985, $2,000 on 20 September 1985 and $100,000 on 10 July 1987. In each case the donor was described as follows, "Carpentaria Pty. Limited as Trustee for the Carpentaria Trust".
Mrs. Gladwin decided to make some investigations concerning Carpentaria Pty. Limited. She was prompted to do so as the result of hearing of a television interview which had been shown on 27 August 1986 in Darwin on an A.B.C. television programme, "The 7.30 Report". Mrs. Gladwin obtained a copy of the transcript of the interview. The interview was with a Mr. G.J. Lewis. Mr. Lewis was, until 16 May 1988, a member of the management committee of the party. He is a member of the party and a former president of it. He has in the past been a director of Carpentaria Pty. Limited. Mr. Lewis is an accountant by profession and prepared accounts for Carpentaria Pty. Limited.
In the course of the interview Mr. Lewis said that Carpentaria Pty. Limited was a trustee company acting as trustee for the Carpentaria Trust. He added, "... the Carpentaria Trust is a body set up for the members of the Country Liberal Party in order to simply fund our election campaigns". He said the trust was legal and gave some information about the identity of the directors of Carpentaria Pty. Limited. He said the only asset or investment of the Carpentaria Trust was the building in which the party had its offices in Darwin. He stated that when there were elections, the trust funded the elections "from Carpentaria's funding handed on to the Country Liberal Party." He also said that the trust was a trust established of members of the party who numbered about 1,000. He continued, "And, it's just an organization like that, that makes itself busy raising funds for the Country Liberal Party." He emphasized that the company and the trust were quite separate from the party.
Mrs. Gladwin obtained copies of returns lodged by Carpentaria Pty. Limited pursuant to the Companies Ordinance of the Northern Territory. These show that the Carpentaria company had a nominal share capital of $10,000 divided into 10,000 shares of $1 each and that two shares only had been issued in respect of which a total of $2 had been paid. The shares had been issued to Mr. G.J. Lewis and a Mr. Wyatt. The directors of the company were Mr. Lewis, Mr. Wyatt, Mr. Kittle and Mr. Giese. Accounts were attached to the returns. The latest accounts which were obtained were those for the year ending 30 June 1985. The balance sheet showed that the company had only its paid up capital of $2 as an asset. Its profit and loss account said that the company was non-trading and had earned no income and incurred no expenses in respect of the 1985 year. The position was the same in earlier years.
Mrs. Gladwin caused searches to be made of the property referred to in the television interview and found that on 23 September 1981 it had been transferred to Carpentaria Pty. Limited for the sum of $240,000. She obtained a rental valuation of the property from the Australian Valuation Office. The valuation is dated 18 February 1988. The estimated annual rental value of the property was considered to be within the range of $43,000 to $50,000 per annum.
Apparently in response to some earlier inquiries Mr. Lewis had written to the Electoral Commission on 20 May 1985. He did so on letterhead of Carpentaria Pty. Limited. He said that the company was incorporated on 15 April 1981 and changed its name to Carpentaria Pty. Limited on 10 June 1981. He said that the company was a trustee for the Carpentaria Trust which was established on 5 September 1981 and had over 1,000 beneficiaries. He referred to the purchase of the property by the trust and said that the property earned substantial rental income. He continued:-

"Accordingly your assertion that the 'Company may have been established for the purpose of transmitting funds to the particular political party concerned' is totally groundless.

That the officers and shareholders of the Company and indeed many of the entities associated with the Trust are 'associated with the Northern Territory Country Liberal Party' is not denied but your further assertions are without base. On a confidential basis, I can advise that the sum of $30,000 came to be available to this Company as a result of trading, and of borrowing from the Trust's bankers, following requests received from the Trust beneficiaries, that a donation of this amount be made to the Northern Territory Country Liberal Party."

The Trust Deed

Mrs. Gladwin had available to her a copy of the trust deed. It is necessary to refer to a number of its provisions. The deed was made on 5 September 1981 between Cobra Nominees Pty. Limited and Carpentaria Pty. Limited. Cobra Nominees Pty. Limited is described as the settlor and Carpentaria Pty. Limited as the trustee. The deed recited that the settlor was desirous of assisting and making provision for members of the party and had for that purpose transferred to the trustee the sum of $50 to the intent that the said sum and all investments and property into which the said sum might be converted should be held by the trustee "upon the trusts and with and subject to the powers and provisions thereinafter expressed or implied." The deed witnessed that the trustee stood possessed of the trust fund and of the income therefrom upon the trusts and with the powers and subject to the provisions thereof which followed. Clause 1 specified the beneficiaries. These were to be such persons (as tenants in common in equal shares) who were financial members of the party, "in accordance with the constitution of that Party as at 30th June in each and every year in the term of this trust." There was a provision authorizing the trustee to accept a certificate from the secretary of the party as to the names and addresses and particulars of the financial members of the party as at 30 June in each and every year of the term of the trust "or as at the vesting day or any other day on which a payment of income or capital is made to the beneficiaries." The trustee was bound to accept and was himself bound by such certificate.
Clause 2 of the deed was headed, "Vesting Day and Perpetuity Period". Clause 2 was as follows:-

"(1) For the purpose of this deed the Vesting Day means the first to occur of the following days:-

(a) the day upon which expires the period commencing from the date of execution hereof and continuing until the expiry of twenty (20) years after the death of the last to die of the lineal descendants of the His Late Majesty King George VI; and

(b) such earlier day as the Trustee may in its absolute discretion in writing appoint;

PROVIDED ALWAYS and notwithstanding anything herein contained all powers and dispositions made by or pursuant to or contained in this deed which but for this provision would or might vest take effect or be exercisable after the expiry of the said perpetuity period shall vest and take effect and be exercisable only until the last day of the perpetuity period."

Counsel drew my attention to the fact that the provisions of clause 2 may offend the rule against perpetuities. This is because the limitation period is not necessarily associated with a life in being at the date of the deed, 5 September 1981. Not only is it possible that there will be lineal descendants of King George VI born after 5 September 1981; there are in fact descendants who have been born since that date. Although the matter was drawn to my attention, neither counsel was minded to put detailed submissions on the question whether the trust was invalid nor on the consequences of invalidity should the deed offend the rule. These are matters to which I shall return in due course.
With clause 2 there needs to be read Clause 5 which is headed, "Rule Against Perpetuities". This clause provided that the exercise of the trustee's powers under the deed were to be subject in all respects to the rule to the intent that no part of the income of the trust fund should be paid or be capable of being paid to the trustees of any other trust or settlement unless the persons entitled to the capital obtained a vested interest therein. This clause does not relate to vesting of the trust property. It is concerned rather with the exercise of the trustee's powers.
Clauses 3 and 4 dealt respectively with the entitlement to income and the vesting of capital. Until the vesting day, the trustee was to stand possessed of the income of the trust fund derived by it in any financial year upon trust absolutely for the beneficiaries then entitled to such income in accordance with clause 1. The trustee was given a discretion to pay or apply the whole, or such part as it should think fit, of the net income of the trust for a relevant accounting period "to or for the benefit of the beneficiaries in such manner as the Trustee in its absolute discretion thinks fit and without being bound to assign any reason therefor." There followed some incidental provisions made in relation to income to which it is unnecessary to refer. On the vesting day the trustee was to stand possessed of the trust fund together with the income thereof upon trust for the then financial members of the party as tenants in common in equal shares. If there should be no such beneficiaries, the trustee was to stand possessed of the fund for such charity or charities in such proportions as the trustee should determine, "any resulting trust to the Settlor being hereby expressly negatived."
Clauses 7 and 8 gave the trustee a number of powers. These powers included powers of advancement, powers to lend to beneficiaries, powers to deal with moneys to which persons under a legal disability were entitled, wide powers of investment, management and transposition, powers to advance and lend moneys, to borrow moneys and to give security for money borrowed, powers to give guarantees, powers to purchase and to otherwise deal in real and personal property and to carry out alterations, renovations and reconstruction of buildings, powers to carry on business and powers to lease. There were a number of other powers which I have not mentioned but the intention was plainly to confer on the trustee very wide powers of almost every description. It should be noted, however, that there was no power conferred on the trustee to make donations.
The remaining clauses dealt with a number of ancillary matters. For the most part these were of a conventional kind. They do not affect the construction of the deed or the matters at issue in this case and it is unnecessary to refer to them further.
The material to which I have referred was the material which was before or available to Mrs. Gladwin at the time she decided to issue the notice pursuant to subsec. 316(3) of the Act. This was the evidence which she gave and there was no challenge to the accuracy of it.
The Applicant's Evidence
The applicant's evidence consisted of two affidavits sworn by him, one of which had annexed to it copies of the relevant returns and of the notice, and an affidavit sworn by Mr. Lewis. Mr. Hare said that Carpentaria Pty. Limited made gifts within the meaning of the Act to the party during the period in question. He did not say that the gifts were made on behalf of the trust. He said that each payment by Carpentaria Pty. Limited was disclosed in returns lodged with the Electoral Commission. He said that he had no grounds to believe that the person who made the payments was anyone other than Carpentaria Pty. Limited and that he knew that it was in fact the company which had made the payments. He said that neither he nor Carpentaria Pty. Limited had been informed by any officer of the Electoral Commission of any possible contravention of the Act nor of the grounds upon which the Commission or any officer thereof believed that he or any other person had committed any contravention of the Act.
In a second affidavit Mr. Hare annexed correspondence in which further particulars were sought. Particulars were supplied by the respondents. Amongst other things the respondents said:-

"1. The possible contraventions of section 315 include contravention of paragraph 315(2)(a), sub-section 315(3) and sub-section 315(7). The possible contraventions all arise from the fact that the Return of Details of Gifts Received furnished on behalf of the Northern Territory Country Liberal Party in respect of the 1987 General Election disclosed a series of gifts purportedly made by Carpentaria Pty. Ltd. as Trustee for the Carpentaria Trust in circumstances where it appears that neither the company nor the Trust had sufficient assets or income to finance the gifts and that neither the company nor the Trust was the true donor of the gifts.

........ ........ ........ ........ ........ ....

17. The matters referred to in paragraph 2 of the Notice are the entries in the Return purporting to record gifts from Carpentaria Pty. Ltd. as Trustee for the Carpentaria Trust."

Paragraph 4 of Mr. Hare's second affidavit was as follows:-

"4. I object to production of the documents on the grounds of confidentiality, not being liable in law to produce and on the grounds that the documents might tend to incriminate me or be used to incriminate me."

Mr. Lewis' affidavit was objected to on the ground that the matters referred to in it were irrelevant. I admitted it subject to that objection. Paragraphs 3, 5 and 9 of his affidavit, which I consider to be relevant, are as follows:-

"3. Carpentaria Pty Ltd was formed in 1981 for a number of purposes:

(a) To own, refurbish and manage a building at 105-107 Woods Street, Darwin.

(b) To enter into a lease with the Party of part of the premises to be used as a Headquarters for the Party.

(c) To commercially operate other parts of the building on a lease basis.

(d) To provide financial support for the administration of the Party.

(e) To provide funds as and when required for the maintenance, outgoings and other expenses involved in the building for the provision of possible leases.

(f) To provide funding assistance as and when required for the Party for Territory Elections and By-Elections.

(g) To provide funding assistance as and when required for the Party for Federal Elections for the House of Representatives and the Senate or for House By-Elections.

(h) The miscellaneous purposes under a usual form of Memorandum and Articles of Association. ........ ........ ........ ........ ........ .....

5. The Company acts as Trustee of monies received by way of contributions and donations. Sometimes persons who make such contributions and donations to the Company enquire as to confidentiality. I have informed such persons, and it is a standing instruction of the Company, that such persons are informed that their confidentiality will be respected but that their funds will be expended at the discretion of the Company and are not tied to any specific activity of the Company.

........ ........ ........ ........ ........ ....

9. The Company receives rents at commercial rates from various tenants, including the Party which currently pays $650.00 per month. The Trust provided funds for a range of Territory and Federal elections when the Party sought topping-up or there was some special reason. At those elections, when the Party was able to fully fund its campaigns, the Trust did not receive any request to assist. This is in accord with the overall policy objective of trying to build up a fund within the Trust which will be self-generating but in the meantime provide supplementary assistance, on request, as well as provide for the other purposes set out above. With regard to various elections since the formation of the Company the policy has not changed with the introduction of the Federal legislation. Neither the Trust, the Company nor the Party has sought to circumvent the legislation. At all times we have sought to operate within the law and with proper respect for the law."

Mr. Lewis annexed copies of the accounts of the trust which were lodged with the Commissioner of Taxation. He pointed out that there was no obligation to lodge accounts of the trust with the Corporate Affairs Commission. The accounts for the year ended 30 June 1987 showed that the trust income consisted of rent and interest and totalled a little more than $23,000. Expenditure, including the sum of $28,000 for interest, totalled $35,000 with the consequence that there was a net loss for the year of almost $13,000. The balance sheet as at 30 June 1987 was divided into three sections entitled, "Settled Fund", "Fixed Assets" and "Current Assets". The Settled Fund was said to consist of the initial $50 settled on the trustee by the settlor and the sum (in round figures) of $570,000 which was described as "Loans from Beneficiaries". From the total of these two amounts was deducted accumulated losses of $85,000 which made the amount of the Settled Fund (roundly) $485,000. The Fixed Assets consisted of buildings, plant and equipment totalling $382,000 and the Current Assets, cash on deposit, prepaid expenses and advances to the party. These advances totalled $231,000. The total assets exceeded $645,000 from which was deducted the amount of a long term secured loan of $160,000. The value of the assets was thus $485,000, the amount of the Settled Fund.
In the course of his evidence, Mr. Lewis was asked questions concerning the 1987 accounts, especially in relation to the loans from beneficiaries. Mr. Lewis' attention was drawn to the accounts. It was mentioned to him that the balance sheet contained no reference to donations by persons to the trust. He said that the term "donation" was a term that he would not use in relation to the funds that "enter Carpentaria." He continued, "I believe that they are contributions in the form of loan funds, and the word 'donations' is a word that I would rarely, if ever, use in relation to the Carpentaria Trust." He said that persons paying moneys to Carpentaria were told that they were making a contribution to the running of the trust. Mr. Lewis' evidence continued:-

"HIS HONOUR: I cannot understand the expression loans from beneficiaries, because if a person makes a loan, he expects that the money will eventually, however distant the time may be, be repaid, and he of course, if there were a winding-up, is entitled to priority over a contributor. There are all sorts of consequences of calling somebody a lender as distinct from a contributor or a donor? ---I think - I would hesitate to argue trust law, your Honour, but my understanding of this position is that the trust funds are ultimately, come vesting day, repayable to the beneficiaries in any case, and such of those - - -

Yes, but they are repayable to them as contributors or beneficiaries, but they are not repayable to them because they lent money, are they? ---Well, I would have to seek advice on that, your Honour."

Although the matter was the subject of further questions, no satisfactory explanation for the use of the expression "loans from beneficiaries" was forthcoming. Mr. Lewis seemed to take refuge in statements to the effect that the matter had been the subject of legal advice. He, however, is an accountant and the question of how these payments should properly be described seems to me to be as much a matter for an accountant as it is for a lawyer.

My conclusion is that, notwithstanding the way in which the moneys are described in the accounts of the trust, the evidence discloses that they are in reality donations. Mr. Lewis preferred the word "contributions", but that tells one nothing about the character of the payments. There is no material before me which would suggest that those paying the money ever expected to have their money returned or had ever received consideration for the payment of it. The only reasonable conclusion open is that the moneys were paid by way of gift and that is the finding which I make. The fact that the persons who gave the moneys, or at least some of them, might, at some unspecified time in the future, be entitled to share in the distribution of trust moneys in the event of the trust coming to an end is not a relevant matter to be taken into account in reaching a conclusion on the true nature of the payments.
Another aspect of Mr. Lewis' evidence to which reference should be made is his agreement that the company had no business except to act as a trustee for the Carpentaria Trust. He agreed that all donations and contributions received by the company were received by it as trustee of the Carpentaria Trust and that all such donations and contributions were impressed with the terms of the trust. He agreed that they could only be distributed in accordance with the trust. His evidence continued:-

"But the reality is that it will be the Country Liberal Party ultimately that will always benefit from the contribution? ---Well, okay, but certain of these contributions are used to pay interest on the mortgage loan, certain of these contributions are used to repay the principal of mortgage loans, and I suppose if that is to the ultimate benefit of the Country Liberal Party, so be it."

The Submissions of the Parties

I have referred earlier to the alternative bases upon which the applicant, Mr. Hare, seeks relief. It does not seem to me to be of critical importance to categorize the case in any particular way. All I would say is that I think there would be considerable doubt whether certiorari would go and some doubt whether prohibition would be an appropriate remedy. It seems to me that the case which the applicant has, if it be made out, is one that falls within the purview of the Judicial Review Act, albeit that he may also have rights at common law. Accordingly, I do not propose to enter upon an analysis of what common law or general law remedies the applicant may be entitled to in addition to any available to him under the Judicial Review Act.
Counsel for the applicant relied upon a number of submissions which may be summarized as follows:-

(a) Mrs. Gladwin did not have reasonable grounds for believing that the applicant was capable of producing documents of the kind specified in the notice.

(b) The notice was defective because:-

(i) The notice required the production of documents which could not possibly be relevant to the inquiries which Mrs. Gladwin was making. The request should have been restricted to financial records which related to donations or contributions of $1,000 or more not earmarked for purposes other than purposes related to an election; see subsec. 304(5).

(ii) It did not specify the breach or breaches of s. 315 which Mrs. Gladwin believed had been contravened or might possibly have been contravened.

(iii) It did not specify the matters said to be set out in the return.

(iv) It did not specify the documents sought by reference to possible offences or the matters set out in the return.

(v) The reference to documents regarding or disclosing receipt of money was not sufficiently specific.

(vi) The notice did not specify the reasonable grounds which Mrs. Gladwin said she had.

(c) The applicant had been denied natural justice or procedural fairness. This ground was supported by a number of particulars all of which related to an alleged failure on the part of Mrs. Gladwin either to seek further information from Mr. Hare or the company or the trust or a failure to inform Mr. Hare of her proposal to use the television interview as part of the material upon which she based her decision.

(d) The applicant was entitled, and is entitled now, to refuse to comply with the notice on the ground that the production of the documents may tend to incriminate him of a breach of the Act; see para. 4 of his second affidavit earlier quoted.

In the course of his submissions counsel contended that Mrs. Gladwin had misconstrued ss. 315 and 316 of the Act and had failed to take into account the fact that the company and the trust which it administered were entities which were legally independent of the party.
In support of his submission that there were no reasonable grounds for issuing the notice counsel said that:-

(a) Mrs. Gladwin had approached the matter as one in which Carpentaria Pty. Limited had received moneys from a source which she could not identify.

(b) She had available information which established that the party had received moneys from the company, but it did not follow that the money which the party received from Carpentaria did not come from it.

(c) Mrs. Gladwin concluded that Carpentaria's ordinary trading records did not disclose sufficient moneys for it to make a payment of the amounts which were in fact paid by it to the party. She therefore concluded that others must have given money to Carpentaria, but she failed to inquire into the character of the trust and the relationship between the company and the trust. It was from the bare fact of moneys in reality given by the trust that she drew her belief of a possible contravention of the Act. Thus there was nothing in the material before her which could ground a belief that Carpentaria was not a person who provided the gifts to the party. The fact was that no-one else provided those gifts.

(d) The Act contemplated that a gift might be made by a trustee. This was clear from the provisions of subsec. 304(4) which required no more than the provision in the return of the name and address of the person who made the gift and from the form of the return itself which said, "for a gift received from a trust provide the name(s) and address(es) of the trustee(s)." The return is in an approved form; see subsec. 304(1) and the definition of "approved" in subsec. 4(1) of the Act previously referred to.

(e) Mrs. Gladwin laboured under the misapprehension that, in the event of it being likely that unidentified persons provided contributions to Carpentaria, she was entitled to conclude that she had reasonable grounds to believe that the gifts were not made to the party by Carpentaria but by such other persons.

In support of their submission that the notice was defective counsel for the applicant made the following further submissions:-

(a) The notice did not enable the person to whom it was addressed to know whether it was he who had possibly contravened the Act.

(b) The notice did not give the recipient a reasonable indication or any information to enable him to judge whether Mrs. Gladwin had reasonable grounds for her belief.

(c) The notice did not enable the applicant to understand the matters in the return to which the reasonable grounds related so that he might have an opportunity of segregating the documents relevant to the matter from those irrelevant to it.

(d) The notice was too wide. It did not specify any particular documents relevant to the grounds. For a notice to be valid the documents of which it requires production must be relevant to what is suspected.

In order that I might be clear on the way in which the applicant put his case for relief in relation to privilege against self-incrimination, I asked counsel to provide me with the declaration and order which they required. The formal declaration which counsel propounded was that the applicant had reasonable excuse by privilege against self-incrimination for not producing the documents in response to the notice. The order sought was that the respondents be restrained from requiring the production of any documents which were the subject of a claim for privilege against self-incrimination.
In the course of their submissions counsel for the respondents emphasized that the power to issue the notice was a power given to the decision-maker, Mrs. Gladwin. Furthermore, they said that the decision would only be held to be unreasonable if it were unreasonable in the sense in which the term is understood in administrative law; see Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1948) Ch 223 at pp 229-233. Counsel also emphasized that s. 316 was a section designed to aid officers of the Electoral Commission in making investigations into contraventions and possible contraventions of the Act. They submitted that it would be idle to give the section a construction which required the Commission to establish a case before it was entitled to use the investigatory powers which Parliament intended it to have.
Counsel for the respondents submitted that there could be no challenge to Mrs. Gladwin's belief that she had reasonable grounds if any one or more of the following existed as reasonable possibilities using "reasonable" in the Wednesbury sense. These possibilities were as follows:-

(a) The trust deed was a sham.

(b) Although it was not a sham, upon its true construction receipt by the trustee was receipt by the party. In effect the company was a bare trustee for the party.

(c) Upon the true construction of s. 304 there was a gift to the party when money was received by Carpentaria. Receipt by Carpentaria was for all practical purposes receipt by the party.

Counsel distinguished the second and third possibilities by saying that the second identified the party with the trust; the third was based upon the closeness of the company's association, and thus the trust's association, with the party. It seems to me that there may be a fourth possibility. It is that the trust deed, although not a sham, may be irrelevant because there might be evidence which would establish that it was not observed. The moneys contributed to Carpentaria Pty. Limited may be held by it as trustee but not pursuant to the terms of the trust deed.
In relation to the form of the notice, counsel for the respondents contended that, provided Mrs. Gladwin had reasonable grounds, she was well entitled to serve a notice requiring production of documents of a general class or category so that she herself could decide which of them, if any, would or might support a case that there was a contravention or possible contravention of the Act. She was the person empowered to make the judgment of what was relevant and what was not; to construe the section in such a way as to require the giver of the notice to describe documents or information which were required to be produced by the criterion of their relevance to a possible contravention of the Act or to a return would frustrate the purpose of the section because the investigation would be stifled at the outset.
Counsel contended that the rules of natural justice had no application to the present case and that the course which Mrs. Gladwin had taken was procedurally fair.
In relation to self-incrimination, they said that it was inappropriate for any such objection to be taken in the present proceedings. If the objection were available to Mr. Hare, it should have been taken by way of response to the service of the notice. On the contrary, the documents in question had been parcelled up by Mr. Hare in a sealed envelope and deposited with the Registrar of the Court without any objection being taken to their production on the ground that production of them might tend to incriminate him. Mr. Hare had thus waived any right he had had to object to production of the documents on this ground. Furthermore, the notice had now expired. The time for compliance with it elapsed on 11 March last. No objection on this ground was taken before the time ran out. It was now too late to take it. Counsel also submitted that it was not open to the applicant to rely upon any such objection to the production of the documents because the Act, upon its true construction, evinced an intention that a person was not entitled to refuse to comply with a notice on the ground that production of the documents might tend to incriminate him.
The Issues
Although the competing submissions of the parties needed to be set out at some length, I think the issues to which they give rise can be stated quite briefly. They are four in number and are as follows:-

(a) Has the applicant established that Mrs. Gladwin had no reasonable basis for the statement in the notice that she believed on reasonable grounds that the applicant, Mr. Hare, was capable of producing documents relating to a possible contravention of s. 315 of the Act and the further belief that such documents related to matters that were set out in a return furnished to the Electoral Commission by the party pursuant to s. 304 of the Act?

(b) Is the notice defective in form? In particular:-

(i) Should it have disclosed the grounds of Mrs. Gladwin's belief and the particular contraventions of the Act which she suspected may have occurred?

(ii) Does it require the production of documents which could have no bearing on any possible contravention of the Act and no relationship to any matter required to be included in a return furnished under the Act?

(c) Was there any failure on Mrs. Gladwin's part to accord the applicant procedural fairness? Involved in this question is the question whether Mrs. Gladwin was bound to afford the applicant natural justice.

(d) Is the applicant now entitled to object to produce the documents on the ground that their production by him may tend to incriminate him. Two questions are here involved. The first is whether a recipient of the notice may ever take an objection on this ground. That is a question of the construction of the Act. The second is whether, assuming the ground to be available in the present case, the applicant has waived his entitlement to take it by producing the documents to the Registrar of the Court or has lost his right because the time for compliance with the notice has expired.

I deal with these submissions as follows.
Reasonable Grounds for Belief
The case propounded by the applicant is that the evidence establishes overwhelmingly that contributions were made by varous people to Carpentaria Pty. Limited as trustee for the Carpentaria Trust. As trustee the company had a wide and unfettered discretion to deal with these contributions in such manner as it saw fit. In particular it was not bound to make donations or to pay moneys to the party. It was a matter for the trustee whether it did so. Thus it was not a conduit pipe through which the moneys must, as a matter of legal obligation, pass to the party. Whether they did or not was a matter for the trustee. Furthermore, as and when it made gifts to the party, it did so in sums not earmarked or impressed by any particular contributor as his or her contribution to the party, but in lump sums from its general funds into which the contributions of many people had been mixed. Mr. Hare's obligation, as the agent of the party, was to disclose gifts to it in the relevant period which amounted to $1,000 or more and which were not earmarked for purposes other than a purpose related to an election. That obligation was discharged when the applicant included in the return the name of the Carpentaria company as the donor of the various sums of money on behalf of the trust. That was the only reasonable way of looking at the matter. It followed that the notice must have been served pursuant to a decision which was manifestly unreasonable in the Wednesbury sense, or which had involved the taking into account of irrelevant considerations or, conversely, the omission from account of relevant considerations, namely, the independence in law of the company and the trust from the contributors of the money to the company on behalf of the trust and their independence, as a matter of law, from the party.
As earlier indicated, counsel for the respondents emphasized that the power conferred by s. 316 was investigatory in nature. It was not for the Court to carry out an investigation. That task was entrusted to an authorized officer of the Electoral Commission who had a statutory obligation to undertake it if he or she believed on reasonable grounds that a person had in his or her possession documents either relating to a possible contravention of a provision of the Act or to the matters set out in a return lodged pursuant to the Act. It was the officer's belief which was in question. The exercise of power pursuant to s. 316 was only a first step in a process which might lead no further because the production of the documents would show positively that there had been no contravention of the Act, or which might end in prosecution if the officer or the Director of Public Prosecutions to whom the matter might be referred thought there had. Even then no contravention would be found established unless an appropriate court convicted the alleged offender after a proper trial. Counsel stressed that Parliament intended authorized officers of the Commission to have the powers of investigation which were conferred on them in order to be able to reach their own conclusions whether, in a particular case, a prosecution should be instituted or not.
The fact that the section is an investigative aid is not in doubt. The heading indicates that that is its purpose. So does the general framework of it. And, if more were needed, there is the fact that the authorized officer's belief relates not to a contravention or possible contravention of the Act but to the question whether the person on whom a notice is served is capable of producing documents or other things or giving evidence relating to such a contravention or possible contravention. Then there is the other leg of the section which empowers the giving of a notice if there are reasonable grounds for believing that a person is capable of producing documents or other things or giving evidence relating to matters that are set out in, or are required to be set out in, inter alia, a return. The second part of the section shows that the investigatory powers for which it provides may be used even where the authorized officer does not suspect the commission of any offence at all but is merely seeking information.
It was against that background that counsel for the respondents made their submission that, if there were any reasonable basis whatever for the view that the applicant held documents which related to a possible contravention of the Act or to a return, the Court should not interfere. In my opinion, that approach is sound. Nevertheless, it is important to see whether there is any substance in the way the matter is put by counsel for the respondents. Is there a reasonable basis for all or any of counsel's possibilities or is each so contrary to the facts as Mrs. Gladwin had them that the belief which she said she had was one that no reasonable person could have possibly held.
Before coming to grips with that question, it is necessary to say more of the trust and of the evidence of the way it was administered. It is first convenient to come back to the rule against perpetuities. I was informed by counsel that the rule applied in the Northern Territory and that no legislation such as the "wait and see legislation" which has been in force in England since 1964 is in force in the Territory; see the Perpetuities and Accumulations Act 1964 (U.K.) and also the Perpetuities Act 1984 (N.S.W.).
The rule is stated in Gray, The Rule against Perpetutities, 4th ed., s. 201 as follows, "No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest." The difficulty with the trust deed in the present case is, as earlier mentioned, that the vesting day is not tied to a life in being.
The matter, as I have earlier observed, was not the subject of argument at all. Both counsel rather let the matter go. Although counsel for Mr. Hare made the formal submission that the rule was not offended, he developed no argument and cited no authorities in support of this proposition. It is possible, I suppose, that a court whose task was to deal with the matter directly might take the view that the proper construction of the deed required words which would make the trust valid to be supplied or understood. There are numerous authorities on this matter but few dealing with cases involving the rule against perpetuities; see, for example, Fitzgerald v. Masters (1956) 95 CLR 420 and Watson v. Phipps (1985) 63 ALR 321, and compare Smidmore v. Smidmore (1905) 3 CLR 344 and Butlin v. Butlin (1966) 113 CLR 353 at p 357 - two cases dealing with wills. In Pearks v. Moseley (1880) 5 App Cas 714 Lord Selborne said (p 719):-

"The rule which has always been applied to cases of remoteness is this: You do not import the law of remoteness into the construction of the instrument, by which you investigate the expressed intention of the testator. You take his words, and endeavour to arrive at their meaning, exactly in the same manner as if there had been no such law, and as if the whole intention expressed by the words could lawfully take effect. I do not mean that, in dealing with words which are obscure and ambiguous, weight, even in a question of remoteness, may not sometimes be given to the consideration that it is better to effectuate than to destroy the intention; but I do say, that, if the construction of the words is one about which a Court would have no doubt, though there was no law of remoteness, that construction cannot be altered, or wrested to something different, for the purpose of escaping from the consequences of that law."

This passage was cited by Street J. (as he then was) in Tidex v. Trustees Executors & Agency Company Limited (1971) 2 NSWLR 453 (a case involving a settlement) who said (p 458) that, whilst a construction giving to the word "children" the meaning of extending to children born after the date of the settlement might well expose the settlor's scheme to greater vulnerability under the rule against perpetuities, the cases established that this was not a consideration to which weight could be given upon a mere question of construction.

I do not think one needs to come to a conclusion about the matter, but I think the better view is that the trust is void because it infringes the rule. For present purposes it is enough to say that a cloud hangs over the validity of the trust. If it be invalid, there then arise questions concerning the nature of the trust, if any, upon which Carpentaria Pty. Limited held moneys coming to it and the terms of such trust. That is another matter upon which I have had no argument or assistance and again it is probably sufficient to say that these matters raise another area of uncertainty. I have considered whether clause 5 assists, but as earlier pointed out, this is to do with the exercise of powers and not the vesting of the trust property. I have considered also whether it could possibly be said that the trust was a charitable one but on no basis could this conclusion be right.
I come then to counsel's three possibilities. The first is that the trust is a sham. The trust may be invalid because it infringes the rule against perpetuities or it may be that the trust is not administered according to the terms of the trust deed because the trustee does not observe them and the members of the party and the beneficiaries of the trust have, by their acquiescence, brought about a situation in which, although the company acts as a trustee, the terms of the trust upon which it does so are not those of the trust deed. But the fact that either of those possibilities or both may be correct, does not mean that the trust deed is a sham.
The question whether a transaction or instrument is to be regarded as a sham has been the subject of recent consideration by a Full Court of this Court (Lockhart, Beaumont and Foster JJ.) in Sharrment Pty. Limited v. The Official Trustee in Bankruptcy (3 June 1988, Sydney, unreported). Lockhart J., after reviewing a number of authorities, concluded (p 9):-

"A 'sham' is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive."

Amongst the authorities to which Lockhart J., and also Beaumont J., referred were Scott v. Federal Commissioner of Taxation (No. 2) (1966) 40 ALJR 260 and Snook v. London & West Riding Investments Limited (1967) 2 QB 276. In the former case Windeyer J. said (p 279):-

"On the other hand, if the scheme, including the deed, was intended to be a mere facade behind which activities might be carried on which were not to be really directed to the stated purposes but to other ends, the words of the deed should be disregarded ...A disguise is a real thing: it may be an elaborate and carefully prepared thing; but it is nevertheless a disguise. The difficult and debatable philosophic questions of the meaning and relationship of reality, substance and form are for the purposes of our law generally resolved by asking did the parties who entered into the ostensible transaction mean it to be, and in fact use it as, merely a disguise, a facade, a sham, a false front - all these words have been metaphorically used - concealing their real transaction ..."

In Snook's case Diplock L.J. (as he then was) said (p 802):-

"I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the 'sham' which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities ... that for acts or documents to be a 'sham', with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating."

These authorities establish that a deed or other instrument will not be regarded as a sham unless it is established by the evidence that it was the common intention of the parties to treat it as a facade or disguise to hide the true nature of the transaction into which the parties have really entered. No such thing is disclosed here.
I also think that it is difficult to conclude that the realities of the matter are such as to warrant the conclusion that the company, as trustee of the Carpentaria Trust, is a bare trustee for the party. I am aware that the persons said to be the beneficiaries of the trust (the members for the time being of the party) may be closely identified with the party itself (again those members because it is an unincorporated association). But, subject always to the problems to which the rule against perpetuities gives rise, no present member of the party is entitled now to any interest in the capital of the trust. Furthermore, there is no present entitlement of any of the beneficiaries to any income from the trust because the trusts as to income are discretionary. The trustee has active duties to perform in relation to the management of the assets and funds of the trust which was intended by the settlor to continue for an indefinite period. Similar considerations apply in relation to the respondents' third possibility.

All these matters seem to me, however, to be somewhat remote from the real questions at issue in this case. I have dealt with them because they were the subject of argument. But what must not be overlooked is that the Court is not the investigator; Mrs. Gladwin is. This application is an attempt by Mr. Hare to s that investigation at the threshold on the ground that Mrs. Gladwin could have had no possible grounds for the belief she has said she had in the notice. In my opinion the Court would need very convincing reasons why it should reach that conclusion before bringing an investigation to a stop. I have decided that no such reasons exist in this case. My reasons for that conclusion stem from the accumulation of a number of factors which are as follows:-

(a) Section 316 is an investigatory provision only. The serving of a notice pursuant to it will not necessarily lead to any prosecution or other adverse effect on the recipient or any other person.

(b) The matter has to be looked at as it was when the notice issued. Mrs. Gladwin has deposed to the materials she then had. I accept her evidence in this respect. The fact that more may be known as a result of this hearing is not to the point.

(c) Mrs. Gladwin is the investigator; the Court is not. It is her judgment which is material, not mine.

(d) Mrs. Gladwin is not obliged to accept the word of Mr. Hare or Mr. Lewis or any other person. I do not say that offensively. I only say it in order to emphasize the nature of Mrs. Gladwin's powers and duties under the Act.

(e) In short Mrs. Gladwin is entitled to investigate the facts for herself and recommend prosecution or not as she chooses. No doubt she would not make a decision about the matter without obtaining advice probably from the Director of Public Prosecutions. At the moment she is engaged in a fact finding exercise which may or may not lead to a prosecution. No doubt she may wish to seek the production of documents from other persons who she believes have relevant documents in their possession.

(f) Notwithstanding my views about the three possibilities put to me by counsel for the respondents, these points need to be made:-

(i) The trustee has no power, at least expressly, to make donations.

(ii) The accounts of the trust were not available to Mrs. Gladwin. If they had been, she would have been entitled to raise questions concerning the description of the moneys contributed to the company by a variety of people as loans. If the matter is looked at, as I think it should be, as it was before evidence of the accounts was produced in these proceedings, the position was one of substantial uncertainty . Mrs. Gladwin had nothing at all to explain to her the source of the moneys contributed by the company on behalf of the trust to the party. She had accounts of the company showing that it had nothing but its paid up capital of $2 and the fact that the building was the only asset of the trust. Her inquiries established that the income earned from it would have been quite insufficient to provide the moneys required to make up the extensive amount contributed to the party by the trust during the relevant period.

(iii) These two factors (i.e. the factors mentioned in sub-paras. (i) and (ii)) are capable of suggesting that, although the deed may not be a sham, it is not the instrument pursuant to which the Carpentaria company acts as trustee and receives and distributes money. There may be some other trust (perhaps an implied trust) or arrangement the terms of which are unknown to Mrs. Gladwin.

(iv) The problem is exacerbated by the problems that pervade the whole matter because of the real possibility of voidness of the deed because it infringes the rule against perpetutities.

(v) There are other factors capable of suggesting that the trusts upon which the Carpentaria company holds the assets and funds are not the trusts provided for in the deed. These chiefly emerge from what Mr. Lewis said in the television interview earlier referred to especially when contrasted with statements made in his letter written on 20 May 1985 on Carpentaria letterhead. In the course of the interview Mr. Lewis said that the Carpentaria trust was a body set up for the members of the Country Liberal Party in order to fund "our election campaigns". He said the only asset or investment of the trust was the building in which the party had its office in Darwin - thus he said nothing about the accumulated funds arising because of the various contributions made to the trust - and he said that, when there were elections, the trust funded them "from Carpentaria's funding handed on to the Country Liberal Party." He said that the trust was a trust established of members of the party who numbered about a thousand and also an organization that made itself busy raising funds for the party. Some of these statements do not sit well with statements made in the letter which Mr. Lewis wrote on 20 May 1985. He denied that the company had been established for the purpose of transmitting funds to the party. He may have been drawing there the distinction between the company and the trust, but if that be so, what he said hardly tells the whole story.

The accumulation of all the matters referred to in the lettered paragraphs provides ample support for the view that Mrs. Gladwin had, objectively speaking, reasonable grounds for the belief which she expressed in the notice. She, of course, carried no onus in this respect; it was for Mr. Hare to persuade me that on no reasonable basis could it be said that she did. But the evidence, in my opinion, establishes that she did have reasonable grounds. The first of the issues I have formulated is therefore resolved adversely to Mr. Hare.
Before leaving this aspect of the case, I should refer briefly to the decision of the Full Court of this Court in W.A. Pines Pty. Limited v. Bannerman (1980) 30 ALR 559 and to the judgments of Brennan J. (at pp 565-7) and Lockhart J. (at pp 571-2). That case concerned a notice served pursuant to s. 155 of the Trade Practices Act 1974 which uses similar, but not precisely the same, language as the section here in question. The case, in my opinion, lends general support for the approach which I have adopted here and for the conclusion at which I have arrived. In particular reference may be made to the judgment of Brennan J. (at p 567) where, after saying that modern authorities were uniform in favour of judicial review of powers which were conditioned upon the existence of reasons for a specified belief, continued:-

"... such a challenge requires the applicant to show that the Chairman has no reason to believe that the person to whom the notice is given is capable of furnishing information, producing documents or giving evidence relating to the investigation which the Commission has in hand, being an investigation of a contravention or what reasonably can be suspected to be or to be about to be a contravention."

The Form of the Notice

In support of their submissions on the form of the notice (issue (b)) counsel for Mr. Hare relied strongly on an analogy which was said to exist between the provisions of s. 316 of the Act here and the provisions of s. 10 of the Crimes Act 1914 providing for the issue of search warrants. Counsel relied on a number of authorities, the principal of which were Reg. v. Tillett; Ex parte Newton (1969) 14 FLR 101, Arno v. Forsyth (1986) 9 FCR 576 and Parker v. Churchill (1986) 9 FCR 334. Counsel for the respondents submitted that this analogy was not helpful; the provisions of s. 316 and s. 10 were very different in form and involved quite different considerations. He sought to rely on cases decided under s. 155 of the Trade Practices Act and ss. 263 and 264 of the Income Tax Assessment Act 1936. In my opinion one has to be careful, in drawing upon cases decided in relation to sections of other Acts, not to apply them too slavishly even if they appear to be of some assistance. It is the construction of s. 316 which is involved here and that must be kept firmly in mind. However, I have considered the other sections referred to and the cases decided upon them and I have reached the conclusion that the closest parallel with the section here under consideration is s. 155 of the Trade Practices Act. The essential differences between it and s. 316 are the use of the expression, "has reason to believe", as opposed to the expression "has reasonable grounds to believe", and the use in s. 155 of the word "matter" which does not appear in s. 316.
There are two decisions of Full Courts of this Court which bear on the construction of s. 155. One is the earlier mentioned decision in W.A. Pines Pty. Limited v. Bannerman and the other, the decision the previous year in Melbourne Home of Ford Pty. Limited v. Trade Practices Commission (1979) 36 FLR 450. A reading of these authorities does not suggest that sections such as s. 155 of the Trade Practices Act and s. 316 of the Act here are to be construed in the same way as a section such as s. 10 of the Crimes Act which provides for the issue of search warrants. There are those who may say that protections of that kind ought to apply in relation to all statutory provisions by which public authorities or agencies may compel the production of documents or the answering of questions. But that is not a matter for the courts, it is a matter for Parliament. In the present case Mrs. Gladwin has said that she has reasonable grounds for the belief for which the section provides and then states the documents of which she requires production. I find it difficult to perceive what else the section requires her to do. The notice may be served on someone not connected at all with any possible contravention of the Act or the making of a return furnished pursuant to the Act or it may do so. The section is intended to cover both categories of persons. Certainly there are questions whether the recipient of a notice may refuse to comply with it on the grounds that to do so may expose him or her to conviction for an offence. But that is a separate question which is raised in issue (d). Many of the submissions made in relation to the form of the notice seemed to me to be based on a suggestion that the recipient was in some way entitled to know precisely what the suspected contravention was or the particular matter in the return that the documents sought might relate to. But an investigator is not obliged to provide this information. If, as I have held to be the case, there can be no challenge to the belief which Mrs. Gladwin claimed in the notice to have, it seems to me that, subject to one other matter, that must close the question of the validity of the notice.
The one matter that I think needs consideration is the width of the requirement which the document makes. I do not repeat it here; it is set out in the notice earlier in these reasons. In short Mrs. Gladwin requires the production of all financial records in the custody of the Carpentaria company which record or disclose the receipt of money by the trust, by the company or by any other company or person on behalf of the trust in the relevant period. The requirement is for the production of records disclosing all receipts of money whether they bear any possible relationship to moneys contributed or donated directly or indirectly for the purposes of the party or not. Thus the requirement does not exclude moneys received by the company in the ordinary course of its business of managing the building which the trust owns beneficially.
Again I think one must bear in mind that Mrs. Gladwin is investigating a matter. It is she who is entitled to have documents produced to her in order to enable her to make a judgment concerning their possible relevance to the matters she is authorized to investigate. Contrary to submissions made to me by counsel for Mr. Hare, I do not think that it could be correct to compel a person giving a notice under s. 316 so to frame it as to give the recipient of the notice the task of making a judgment about the nature of the documents in his or her possession, production of which is required. Indeed, such a requirement may itself be bad for this very reason.
Two matters were specifically relied upon in connection with this question. These were that there could not be a contravention of the Act unless it were established that Mr. Hare had failed to include in the return a gift which was in an amount of $1,000 or more and made unconditionally. In other words he was not under an obligation to disclose any gift unless it were of the requisite amount and not impressed by the donor with a purpose other than one which related to an election; see subsec. 304(5).
I have reached the conclusion that the absence of any such restriction in the words used in the notice do not invalidate it. The documents which are required are limited to those which evidence receipts of money. There can be no question but that moneys were received which might, although by then admixed with others, go to the party. On the basis of what Mr. Lewis had said in the television interview, the collection of money that might eventually be paid to the party was the trust's most substantial activity. In my opinion an investigator in the position of Mrs. Gladwin is entitled to see those records in order to make up her own mind concerning the character or purpose of the payments received by the company on behalf of the trust. She is not obliged to accept them at their face value. And she would be entitled to put them together with other documents or other information in her possession to establish a particular fact or matter which might constitute evidence of a contravention of the Act. Ultimately, any prosecution launched for a contravention of the Act based on failure to disclose the names of the persons who had contributed money to the trust will be faced with the proposition that the trust is independent of the contributors and itself is properly characterized as the donor. But that does not mean that Mrs. Gladwin herself is not entitled to investigate that question and make her own judgment about it. It should be understood that the fact that the documents are produced to her does not mean that they become, for that reason, documents which are made available to the public. She will have obligations in relation to them which will, in effect, oblige her only to use them for the purposes for which she requires them. They will not become public property unless they are tendered in some legal proceeding or unless there is lodged in due course of time an amended return which discloses information in them.
For the reasons I have given, I consider the form of the notice not to offend the section with the consequence that the second issue, like the first, is resolved adversely to Mr. Hare.
Natural Justice
In my opinion Mrs. Gladwin was not obliged to give Mr. Hare any opportunity of making submissions to her why the notice should not be served or why it should be limited in a particular respect. Nor was she obliged to foreshadow to him the nature of her belief in relation to a possible contravention of the Act. She was acting in an investigatory capacity only. Nothing that she could do could affect any right or interest which he has or expose him, except by the operation of the Act itself, to conviction for any offence or the risk of such a conviction. In the light of the decision in Kioa v. West (1985) 159 CLR 550, it is probably true to say that few statutes will be construed in such a manner as to deny to persons affected by action taken under them procedural fairness. The question in each case is what does procedural fairness require. In my opinion it did not require Mrs. Gladwin to give Mr. Hare any opportunity of making any submissions to her at all about whether the notice should be issued or what the form of it ought to be.
Self-Incrimination
There are three points in relation to self-incrimination. These are:-

(a) Upon the true construction of the Act, is a person served with a notice under s. 316 entitled to refuse to produce documents or give evidence on the ground that to do so might tend to incriminate him?

(b) Assuming that the privilege applies, may it now be claimed having regard to the fact that the notice expired on 11 March 1988?

(c) In any event, has Mr. Hare, by depositing the documents with the Registrar, waived any claim for privilege to which he might otherwise have been entitled?

The question of construction has been the subject of a number of decisions of the High Court. I refer only to Mortimer v. Brown (1970) 122 CLR 493, Sorby v. The Commonwealth of Australia (1983) 152 CLR 281 and Pyneboard Pty. Limited v. Trade Practices Commission (1983) 152 CLR 328. The majority in Pyneboard held that the privilege against exposure to a penalty was not inherently incapable of application in non-judicial proceedings. It was, depending upon the proper construction of the statute in question, also available in appropriate cases in connection with administrative proceedings. That conclusion was also reached by the majority in Baker v. Campbell (1983) 153 CLR 52.
The question whether the privilege could apply in proceedings other than judicial proceedings was the only question upon which there was disagreement by the judges who decided Pyneboard. On the question of construction here at issue they were all agreed. Mason ACJ. (as he then was) and Wilson and Dawson JJ. said (p 341):-

"In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings."

Their Honours went on to refer to Mortimer v. Brown in which the Court held that s. 250 of the Companies Act 1961 (Q.) excluded the availability of the privilege on the public examination by a judge of directors of a company in voluntary liquidation. Reference was made to the judgments of Kitto J. and Walsh J. The judges referred to the fact that Kitto J. had noted that the evident purpose of the section, primarily if not wholly, was to enable a suggestion of fraud or concealment of a material fact to be fully investigated and that such a question must frequently involve consideration of evidence tending to incriminate individuals. Kitto J. had said (122 CLR at p 496):-

"To read down the wide terms of the section so as to allow a danger of self-incrimination as a valid ground for refusing to answer a question would render the provision relatively valueless in the very cases which call most loudly for investigation. By providing in sub-s. (7)(c) that notes of a person's examination may thereafter be used in evidence in any legal proceedings against him, the section shows that the possibility of self-incrimination is contemplated as being inherent in the kind of examination that is authorized."

Walsh J. had said (122 CLR at p 498) where he said:-

"The argument for the applicants is that the provision should be construed in a way which restricts its operation so as to preserve the traditional right or privilege against compulsory self-incrimination, which has commonly been recognized as available to witnesses in judicial proceedings. It is said that in the absence of an abrogation in express terms of this privilege, the provision should be construed as not disclosing an intention to take it away from persons who are required to submit themselves to examination.

In my opinion the character and purpose of the provision are such that a construction which would curtail its operation in the manner and for the reason suggested ought not to be adopted."

The legislative provision in question in Pyneboard was s. 155 of the Trade Practices Act. In my respectful opinion it was a clearer case than either Mortimer v. Brown or this one. That is because of the provisions of subsec. (7) which provides that a person is not excused from furnishing information or producing or permitting inspection of a document on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under the section or the furnishing by a person of any information in pursuance of such a notice or any document produced in pursuance of such a notice is not admissible in evidence against the person except in the circumstances provided for. In Pyneboard the privilege was claimed because it was said that Pyneboard was exposed to a penalty if it complied with the notice. The subsection referred only to criminal proceedings. The penalty, which is provided for in s. 76 of the Trade Practices Act, is recoverable in a civil action for penalties, not in a criminal proceeding. But it is not without importance to see how the three judges approached the matter of the presence of subsec. 155(7). They said (pp 343-44):-

"As in Mortimer the comment may be made that the provision is valueless if the obligation to comply is subject to privilege. Without obtaining information, documents and evidence from those who participate in contraventions of the provisions of Pt IV of the Act the Commission would find it virtually impossible to establish the existence of those contraventions. The consequence would be that the provisions of Pt IV could not be enforced by successful proceedings for a civil penalty under s. 76(1). On this view of the section the presence of sub-s. (7) presents no problem. Its object is to limit the use to which the material obtained can be put in criminal proceedings except as provided in pars. (a) and (b). It is understandable that no similar provision is made in respect of the use of the material obtained in proceedings for a civil penalty. The only proceedings of that kind which can be taken are proceedings under Pt IV of the Act, being proceedings in which the material obtained is intended to be admissible evidence.

It may be said that on the construction which we favour that the first part of sub-s. (7) is redundant. Strictly speaking, this is so, but it is understandable that the draftsman considered its inclusion desirable so that the sub-section contains a comprehensive statement touching the exclusion of the privilege and the use to which the material can be put in proceedings. No doubt it was the prohibition against the use of the material in proceedings for a criminal offence otherwise than under the Act that was the mainspring for the introduction of the sub-section. The absence of any liability for a civil penalty, except in proceedings for a contravention of Pt IV, explains why it was not thought necessary to include a like provision in respect of the privilege against exposure to a civil penalty."

It follows from what their Honours there said that the presence of subsec. 155(7) was not the critical factor which led them to their decision. Counsel for Mr. Hare strongly submitted that the case should be distinguished on that ground but the references made to Mortimer v. Brown and the statements made in the passage just cited show that this submission should be rejected.
It remains to refer to Sorby v. The Commonwealth upon which counsel for Mr. Hare placed strong reliance. It was a case which concerned the construction of various sections of the Royal Commissions Act 1902 and the Commissions of Inquiry Act 1950 (Q.). It is unnecessary to refer to the detail of the legislation in question. It is enough to say that the judges who decided it found indications in it of an intention not to abrogate the privilege. Mason, Wilson and Dawson JJ. said (152 CLR at p 311):-

"If, therefore, the sub-section had stood alone in the context of an Act which imposed an obligation on a witness to answer all relevant questions, there might well be substance in the submission that its presence was consistent only with a legislative intention to abrogate the privilege. However, the sub-section does not stand alone in the State Act. The context furnishes provisions in s. 10(4) and s. 14(1)(ii) which protect a witness in respect both of a refusal to answer questions and to produce documents if he has a reasonable excuse. There is no sufficient indication in the Act that a witness is not entitled to that protection if the reason for his refusal is a well-grounded claim to the privilege against self-incrimination."

It may be observed that the judgments in Sorby and Pyneboard were delivered by the High Court on the same day. The result in each case was different and that, perhaps, is a sufficient indication of the fact that it was the difference in the form of the legislation in each case which was the critical factor.
The section in question here is in a Part of an Act which imposes on various persons a variety of duties in relation to disclosure of donations made and expenditure incurred in connection with elections. Failure to comply with the duties and obligations which are provided for will usually involve the person in breach in the commission of an offence for which he may be fined or, in some cases, sent to prison. By enacting the legislation Parliament has evinced an intention that it is in the public interest that there should be disclosure of certain matters in relation to the funding of political parties and the expenses which they and their candidates incur. Information about those matters will be within the knowledge usually only of the parties, their candidates, their officials and the persons who have either contributed money or been paid for various services connected with political campaigns. In other words the matters which an investigator may wish to ascertain will, more often than not, be matters which are peculiarly within the knowledge of the parties and their officials. Without the investigative aid provided for in s. 316 the Electoral Commission would find it very difficult in most cases to obtain sufficient information upon which to make a decision whether the Act had been contravened.
Those considerations are sufficient, in my opinion, to lead to the conclusion that there is disclosed, in the Act here, a legislative intention to exclude from it the privilege against self-incrimination. The question of construction is therefore answered adversely to Mr. Hare.
The second question concerns the fact that the notice required production of the documents on or before 11 March 1988 so that the time for producing them has expired. Either the notice is good or it is bad. If it is good, an offence will have been committed unless production of the documents to the Registrar is to be regarded as a sufficient compliance. It may be that the Commission will take the view that it was and not lodge a prosecution for non-compliance. But whether that be so or not, the time within which any claim for privilege from production of the documents on the ground of self-incrimination has passed. No claim was made within that time. If contrary to the conclusion at which I have arrived, the claim was available, it is not available in this case for failure to produce the documents because the time for making it expired with the time limited in the notice on 11 March 1988. Accordingly, the second question is also answered adversely to Mr. Hare.
The third question raises the matter of waiver. Counsel for the respondents contend that Mr. Hare has waived any privilege to which he was entitled by producing the documents to the Registrar. The question is academic because I have found that there is no such privilege and that, in any event, it was too late to raise the claim, the notice having expired. But if my conclusions on the first two questions had been otherwise, I would not have reached the further conclusion that privilege had been waived. Mr. Hare is entitled to test the validity of the notice served on him. In order to preserve the status quo, the parties reached a sensible agreement involving the depositing of the documents with the Registrar. That action by Mr. Hare should not be regarded as a waiver by him of any rights which he had in relation to the notice. But it should be said that the only way in which the claim has been raised is in para. 4 of his affidavit of 27 May last. This seems a somewhat inappropriate course bearing in mind that it was his obligation to produce the documents to the Electoral Office in Darwin. If he wished to claim privilege, he should have communicated his intention to make his claim to Mrs. Gladwin or the Darwin Electoral Office. It is not a matter with which the Court could be concerned, there being no judicial proceeding in which it is appropriate to raise the claim. For the reasons I have given the fourth issue, like the other three, is determined adversely to Mr. Hare.
In the result the application to this Court is dismissed with costs. Because of the absence of agreement between the parties as to what is to be done with the documents in the custody of the Registrar, I have decided to make no order about them at this stage so that they will continue to remain with him. There will be liberty to each party to apply on two days' notice as he or they may be advised. Such application may be notified to the Registrar or to my Associate in Sydney.

[1988] FCA 331

07 APRIL 1988